Factsheet from
Name of ACCA member organisation here
Tel: 0000 000 0000
Email: something@accamemberorganisation.co.uk
www.accamemberorganisation.co.uk
Twenty words from the organisation explaining its services over this one line of available text which you see here
Working time regulations
Regulations covering working hours apply to almost every business. Working time regulations aim
to improve health and safety by controlling the hours employees work.
This briefing covers:
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The rules governing working hours, rest periods, annual leave and night work under the
working time regulations.
How to keep your paperwork in order.
How the regulations are enforced.
1. The working week
Central to the working time regulations is the worker’s statutory right to a maximum average working week of 48 hours.
1.1
Hours worked are averaged out over a 17-week ‘reference period’.
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1.2
Working hours include any time when the worker is at the employer’s disposal and is expected to carry out
activities for the employer.
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1.3
If the workers agree, the average can be calculated over successive 17-week periods, rather than on a
rolling basis.
For some special cases, the reference period is 26 weeks.
The reference period may be extended to up to 52 weeks by agreement (eg where work fluctuates over the
year).
The average must be calculated in a way which takes into account periods of leave, sickness and so on. For
example, a worker who has been on holiday for half of a 17-week period cannot be forced to work 96 hours a
week for the remainder.
For workers who have been employed for less than 17 weeks, the average is calculated from the time the
worker started employment.
Work-related training is counted as part of the working week.
Travel time to and from work is not counted as working hours (but travel as part of the employee’s duties is).
Lunch breaks are not working hours (but a working lunch is).
Being on standby to be called out, if the employee is at the place of work, is counted as working hours. If the
employee is on call and free to pursue leisure activities, it is not. For transport workers ‘periods of availability’
known in advance do not count as working time.
Workers (at the moment) can voluntarily agree to disapply the 48-hour limit.
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There must be a suitable written agreement.
Workers cannot be forced to agree to disapply the limit.
Pressuring workers to agree to disapply the limit is a breach of the regulations.
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Workers can be offered overtime which takes them over the limit, but cannot be forced to work the overtime.
Workers who regularly work overtime which takes them over the limit must have signed an opt out agreement.
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Employers may consult on and agree a system of annualised hours whereby the total number of hours
worked do not exceed an average of 48 hours per week over a period of one year. This means that
employees have to work their annual quota first before becoming entitled to overtime.
Transport workers are excluded from the opt-out arrangements but may work up to 60 hours in any one
week, provided the 48-hour average is not exceeded.
Many parents and carers have the right to request flexible working.
2. Night work
2.1
Night workers (who regularly work at least three hours during night time) should not exceed an average of eight
hours in each 24-hour period, averaged over 17 weeks.
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2.2
Night workers whose work involves special hazards or physical or mental strain are limited to eight hours for
every 24-hour period (eg workers in the steel industry).
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2.3
Night time is a period of at least seven hours which includes the hours from midnight to 5am. Unless
otherwise agreed by the employer and workers, night time runs from 11pm to 6am.
The averaging period can be extended by agreement or in specified circumstances.
There is no opt-out facility for night work regulations.
There are some exemptions in health and public services (eg nursing homes).
Night workers in the transport industry are limited to ten hours in 24.
Night workers are entitled to a health assessment before being required to perform night work.
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16-18 year olds should not normally be allowed to work nights.
Adolescent workers are entitled to a health and capacities assessment, which covers the worker’s physical
and psychological abilities to do the work.
Assessments should be repeated regularly.
3. Breaks
3.1
Workers are entitled to a minimum 20-minute rest break in each shift lasting more than six hours.
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3.2
Workers are entitled to 11 hours’ consecutive rest between shifts each day.
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3.3
In specified circumstances, rest breaks can be accumulated (see box opposite).
Adolescent workers (above the minimum school leaving age, but under 18) are entitled to at least 30
minutes, if they work longer than four-and-a-half hours.
In specified circumstances, rest periods can be accumulated.
Adolescents are entitled to 12 hours’ consecutive rest each day.
Workers are entitled to one day off each week, or two days off every two weeks.
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In specified circumstances, days off can be accumulated and given later.
Adolescents are entitled to two days off per week.
4. Holidays and leave
You are obliged by law to give everyone who works for you paid annual leave — unless they are genuinely selfemployed.
4.1
The legal minimum for annual leave is 5.6 weeks per year.
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4.2
Workers will normally be paid for a holiday at the time it is taken. It is no longer possible to pay ‘rolled-up holiday
pay’ (ie weekly pay which includes a payment equal to one week’s holiday pay accrual).
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4.3
You cannot replace the holiday entitlement with pay in lieu, except when employment comes to an end.
You should renegotiate any contracts that involve rolled-up holiday pay so that future holidays are paid at the
time the leave is taken.
Workers are entitled to take leave from the start of their employment.
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You cannot impose a ‘service requirement’.
For example, you cannot make new workers wait six months before they can use any of their holiday entitlement.
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4.4
Leave must accrue at one-twelfth of the annual entitlement for each month worked, rounded to the nearest
half day.
Part-time workers and most fixed-term employees have similar entitlements to paid annual leave.
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Part-time workers' entitlement is calculated pro rata.
For example, if full-time, five-days-per-week workers get 28 days’ paid holiday a year, part-timers doing the equivalent
of two days’ work a week will be entitled to 11.2 days’ leave.
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Most fixed-term employees are entitled to no less favourable treatment.
The exceptions include apprentices, work experience placements of less than one year and people on
government training schemes.
4.5
You can exercise some control over the timing of employees’ holidays.
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You can require them to take some holiday at specified times. For example, if you close your whole factory
over one or two weeks of the year.
You can require them not to take holiday at some specified times — for example, at or around the time of
your industry’s trade show.
You can specify how much holiday can be taken at any one time.
You must give appropriate notice ahead of each week you require people to take their holiday.
4.6
You need a system for deciding on holiday dates.
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Many businesses work on a ‘first come, first served’ basis.
Others allow senior people, or those with longer service, to choose their dates first.
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4.7
Specify that you need reasonable notice on holiday dates — say, one month.
You might also state that no more than one or two staff in any one department should be off at the same
time.
You need a policy on holiday rollovers.
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For example, you might specify that no more than one weeks' unused holiday can be carried into the
following year.
Workers must take at least four weeks holiday a year. If they take less, they cannot carry this over. So a
worker entitled to 5.6 weeks’ holiday a year cannot carry over more than 1.6 weeks’ unused holiday.
5. Paperwork
To avoid problems later on, make sure you have accurate and up-to-date records.
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5.1
You may need to keep records to show that you are complying with the requirements of the working time
regulations.
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If you employ on a contract for a normal nine-to-five environment, you do not need to keep special records.
Payslips that quote hours worked are sufficient.
You should keep records of night work and any related health assessments.
Records must be kept for at least two years.
5.2
You must keep a record of workers who have agreed that the 48-hour limit will not apply to them.
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Agreements should be in writing and signed by the worker.
Reference to an opt-out agreement should be made in the worker’s contract but the agreement itself should
not be incorporated within the contract — it should be signed separately.
The agreement can be cancelled at any time, but the worker must give the employer seven days’ notice, or
longer if agreed (up to three months).
Records must be available for inspection by the relevant authorities (see 6).
6. Enforcement
6.1
The working time limits are enforced by the health and safety authorities.
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This is usually the Health & Safety Executive (HSE) for factories and the local authority for offices, shops and
so on.
6.2
Entitlements to rest periods, breaks and leave are enforced by employment tribunals and the county court
system.
6.3
In practice, you are most likely to run into problems if an employee complains.
6.4
Penalties for breaches of the regulations can be high.
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Breaches of working time limits can lead to improvement notices being issued. Subsequent failure to comply
can lead to unlimited fines and imprisonment.
Employment tribunals can order appropriate compensation payments (limited to £72,300 where there has
been an unfair dismissal).
7. Getting help
7.1
For more information on holiday entitlements and the working time regulations, contact Acas on 08457 47 47 47
or visit www.acas.org.uk.
7.2
For more guidance on working time and holiday entitlements, visit the Directgov website
www.direct.gov.uk/en/employment/index.htm.
Special cases
The maximum working hours apply to almost everyone (including transport and temporary workers). But the
regulations allow for some derogations which modify the rules.
A.
The maximum working week does not apply to workers with unmeasured working time or who determine their
own hours of work.
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This is a limited exclusion category but typically includes managing executives and family workers.
The genuinely self-employed are also excluded.
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B.
In specified circumstances, workers can receive compensatory rest when the demands of work do not allow the
specified breaks. These include:
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Activities involving the need for continuity of service (eg hospital services, utilities).
Activities where there is a foreseeable surge in demand (eg tourism).
Compensatory rest should be given as soon as possible.
C.
The rules do not apply in the case of unexpected and unpredictable occurrences which are beyond the
employer’s control.
Paid or unpaid leave?
There are specific occasions where you are obliged to give staff time off.
A.
You must give paid time off to employees who are:
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Carrying out duties or receiving training as a health and safety representative.
Carrying out duties related to your business as a representative of a recognised trade union or receiving
training as a trade union representative.
Looking for a job or arranging training for future employment while being made redundant.
Aged between 16 and 18 and training to NVQ Level 2 or equivalent. If they pass their 18th birthday, you
must pay them until the training is complete.
Carrying out duties or receiving training as an employee representative for consultation over collective
redundancies or business transfers.
Pregnant and attending ante-natal care.
You must give time off — but payment is discretionary — to employees who are:
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Undertaking public duties, such as acting as a magistrate, a member of a local authority, police authority,
health authority or NHS trust, a member of the Volunteer Reserve Service within the Army (TA), Navy, or
Royal Marines, or a member of an environmental agency.
Taking part in recognised trade union activities that are not directly related to your business.
You must not subject employees to any detriment for being summoned for jury service, but you can ask them to apply
to have the jury service deferred if your business will be seriously harmed by their absence.
Note
Employment law is complex and is changing rapidly. This briefing reflects our understanding of the basic legal position
as known at the last update. Obtain legal advice on your own specific circumstances and check whether any relevant
rules have changed.
Note
In England and Wales there are usually eight bank and public holidays a year.
These are the three bank holiday Mondays, Christmas Day, Boxing Day, New Year’s Day, Good Friday and Easter
Monday. June 5 2012 was also a bank holiday.
Experts’ quotes
“Difficulties can arise where an employee's wage or salary has a 'built-in' expectation of long hours and an employee
suddenly refuses to work more than 48 hours. The obvious answer of a pro rata adjustment to pay may prove to be
unlawful.”
Jim Givens,
HR Management Solutions
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Expert contributors
Thanks to Jim Givens (HR Management Solutions, 01695 421980, www.humanresourcesclick.net); Richard Pettinger
(University College London, 020 7209 6245); Alison Love (Hugh James solicitors, 029 2039 1075).
Last reviewed 01.10.12
© BHP Information Solutions 2012. ISSN 1369-1996. All rights reserved. No part of this publication may be reproduced or transmitted without the
written permission of the publisher. This publication is for general guidance only. The publisher, expert contributors and distributor disclaim all liability
for any errors or omissions. Consult your local business support organisation or your professional adviser for help and advice.
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